MOTHER’S EX WANTS TO KNOW IF THE CHILD IS HIS
Teasdale & Rossell & Anor [2021] FCCA 58 (27 January 2021)
This is an application for Parentage Testing Orders where the child does not have a relationship with the applicant. The child lives with the second respondent and has only ever known him to be his father.
Facts:
The mother and the second respondent started a relationship in early 2013 but it was short lived. In April of that year, the mother commenced a relationship with the applicant which lasted about a month. She then resumed her relationship with the second respondent and they remained in a relationship until 2016. X was born in 2014. She was living with the second respondent at the time and his name was placed on the child’s birth certificate as the father.
The applicant sought orders for parentage testing. The applicant has pressed his application which is opposed by both the mother and the second respondent. It was argued that there would be a risk of psychological harm to the child if it were suggested to him that the second respondent might not be his father.
Issue: Should the court grant the Parentage Testing Orders?
Law:
- Family Law Act 1975 SS.60C, 60CA, 60CC, 69R, 69U, 69V, 69VA, 69W.
Analysis:
The child, who is now seven years of age, has only ever known the second respondent as his father. He has been a constant in the child’s life and for the last two years has been his primary carer. The child and his sister live in the full time care of the second respondent. It was submitted that it would be upsetting for him to undergo the necessary test and would cause him to question an important aspect of his life that he has hitherto not had any doubt about.
X’s interests would not be served by ordering the parentage testing despite there being doubt about who his biological father is. If the applicant had have brought the application much sooner than 2018 and/or he had an ongoing relationship with the child the court may have come to a different conclusion. In weighing the arguments raised, the court considers that it would be difficult to keep from a child, who is seven years of age, the reason for him undertaking the test without lying to him. This is a child who has already been removed from his mother’s care and has now been living with the second respondent and his sister for over two years. It would be unsettling for him to bring into question who his father is at this point in his life. This consideration outweighs the other legitimate issue of him knowing the truth that testing could provide.
Conclusion: For these reasons, the court will dismiss the application.
